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Jeopardizing Exempt vs Non-Exempt Status? Ohio

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  • Jeopardizing Exempt vs Non-Exempt Status? Ohio

    Can you have one full-time exempt employee on "salary" and another employee on a hourly rate with the employees having the exact same educational background, professional degree and same job description as other professionals in the company?

    My concern is that the employer is jeopardizing the "exempt" status of those in this job code by having one employee on salary and one hourly with all else being equal.

  • #2
    Probably. There could be a couple of good reasons for the difference.

    Having said that, I would make sure I was comfortable with the exempt status of the one you were treating as hourly.

    Are you the employer or one of the employees?
    I don't respond to Private Messages unless the moderator specifically refers you to me for that purpose. Thank you.

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    • #3
      I am the operations manager for the company. We have both hourly and salary staff. We've been through a DOL audit and our classifications for the professional staff have been confirmed by the DOL.

      My concern is the owner of the company is jeopardizing the exempt status of the other professionals within the same job code. The new employee has not started yet (This person was offered the hourly rate). I don't know if it is wise to have employees with the same job code classified both as "exempt" and "non-exempt".

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      • #4
        Having another employee doing the same job classified as non-exempt is not, in itself, enough to jeopardize the exempt status if the job duties qualify to be exempt.

        What is the reason you have them classified differently? That *might* make a difference.
        The above answer, whatever it is, assumes that no legally binding and enforceable contract or CBA says otherwise. If it does, then the terms of the contract or CBA apply.

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        • #5
          That's just it..until now, all are classified as "exempt". Now we'll have an employee that will be "non-exempt". Not sure of the owners reason..most likely recruitment I suspect.

          I know that if you have a salaried employee and you start to pay them hourly, you can jeopardize their exempt status. Just wasn't sure about having 2 employees with the same background working in the same setting but having different classifications for their exemption status.

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          • #6
            I'm really not seeing an issue here.
            The above answer, whatever it is, assumes that no legally binding and enforceable contract or CBA says otherwise. If it does, then the terms of the contract or CBA apply.

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            • #7
              I appreciate your feedback.

              Maybe it's more of an employee "morale" related issue. In other words, if the salaried employee found out that the person next to them is getting paid hourly (doing the same job) but has the ability of getting paid over-time and the salaried employee cannot. It might hurt some feelings.

              Thanks again!
              Bill

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              • #8
                On the flip side, the exempt employee is guaranteed his entire salary every week (with very limited exceptions) while the non-exempt employee has no legal expectation of being paid when they do not work.
                The above answer, whatever it is, assumes that no legally binding and enforceable contract or CBA says otherwise. If it does, then the terms of the contract or CBA apply.

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                • #9
                  In our profession (healthcare), 40-42 hours is the norm but you are right....

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                  • #10
                    Agreed with the other answers.
                    - On the one hand, it is not inherently illegal to classify two employees with similar duties differently. There is a teeny, tiny chance that the employer may even have a good reason to do so.
                    - On the other hand, any time an employer behaves in an apparently discriminatory manner they risk having some employee claim sinister (and illegal) motives for these actions. Maybe a Title VII motive. So even if the action is not inherently illegal, the motives behind the action can be claimed to be illegal. Then we have Wheel of Fortune time, where the judge gets to decide which party tells the best story. So, while the action may not be illegal, but failure to be a good story teller might be.

                    IMO, while the action described is not inherently illegal, it is maybe not very bright. It is safer to treat similar classes of employees in a similar manner even if there is no hard legal requirement to that effect.
                    "Reality is that which, when you stop believing in it, doesn't go away".
                    Philip K. **** (1928-1982)

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                    • #11
                      Well, now that DAW has brought it up, I have to admit that I don't think it's a particularly great idea either. I was responding to the legality, since that's what was asked. But just because it's legal doesn't mean it's smart.

                      I would see if you could find out specifically why the manager wants to make this employee non-exempt.
                      The above answer, whatever it is, assumes that no legally binding and enforceable contract or CBA says otherwise. If it does, then the terms of the contract or CBA apply.

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                      • #12
                        Just found out the reason was for recruitment. The candidate would not join the organization unless they were paid hourly and the owner wanted this person on-board.

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                        • #13
                          Well, that may or may not be smart (don't know the owner's reasons for wanting him so badly) but it's not illegal and will not jeopardize the exempt status of other employees.
                          The above answer, whatever it is, assumes that no legally binding and enforceable contract or CBA says otherwise. If it does, then the terms of the contract or CBA apply.

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                          • #14
                            Agree....Thanks for the input....

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